UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) ) ) ) ) ) ) ) ) )

Transcription

1 THE HONORABLE RICARDO S. MARTINEZ 1 1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE NATIONAL WILDLIFE FEDERATION, v. Plaintiff, FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. :-cv-0-rsm PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION NOTE ON MOTION CALENDAR: MONDAY, FEBRUARY, ORAL ARGUMENT REQUESTED PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION (Case No. :-cv-0-rsm) 0 Second Ave., Suite () -0

2 1 1 TABLE OF CONTENTS INTRODUCTION... 1 BACKGROUND... I. NMFS HAS CONCLUDED THAT IMPLEMENTATION OF THE NFIP JEOPARDIZES SALMON AND ORCAS.... II. A. Mapping... B. Levee Maintenance Criteria... C. Minimum Eligibility Criteria... D. Community Rating System... TO AVOID JEOPARDY, NMFS RECOMMENDED SIGNIFICANT CHANGES TO EVERY MAJOR ELEMENT OF THE NFIP.... STANDARD OF REVIEW... ARGUMENT... I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIM THAT FEMA IS VIOLATING AND OF THE ESA.... A. The ESA Strictly Prohibits Actions That Cause Jeopardy to Listed Species or That Result in Unlawful Take.... B. To Comply With, Federal Agencies Must Either Implement RPAs as Written or Bear the Burden of Proving That Their Actions Avoid Jeopardy.... C. By Not Implementing the RPA or Any Alternative that It Has Demonstrated Will Avoid Jeopardy, FEMA is Violating of the ESA FEMA Has Not Implemented RPA #..... FEMA Has Not Implemented RPA #.... i. Inadequate and untimely compliance.... ii. Omission of RPA development standards.... iii. FEMA s habitat assessment guidance lacks substantive standards or clear definitions.... INJUNCTION (Case No. :-cv-0-rsm) -i- 0 Second Ave., Suite () -0

3 II. iv. Failure to consider cumulative effects.... v. Inadequate development tracking and oversight.... vi. Failure to protect Channel Migration Zones... vii. Failure to address state vesting loophole.... viii. Permit-by-permit review was rejected as inadequate in the Key Deer case FEMA Has Not Implemented RPA #..... FEMA Has Not Implemented RPA #..... FEMA Has Not Implemented RPA #..... FEMA Has Not Implemented RPA #..... Conclusion re. Jeopardy.... D. FEMA Is Violating the ESA s Prohibition on Take.... PLAINTIFF WILL BE IRREPARABLY HARMED WITHOUT AN INJUNCTION III. A. Plaintiff Will Be Irreparably Harmed If FEMA Continues Implementing the NFIP in Puget Sound.... B. Plaintiff Seeks a Narrowly-Tailored Injunction.... THE BALANCE OF HARMS AND THE PUBLIC INTEREST SUPPORT AN INJUNCTION.... CONCLUSION... 0 INJUNCTION (Case No. :-cv-0-rsm) -ii- 0 Second Ave., Suite () -0

4 1 1 CASES TABLE OF AUTHORITIES Page(s) Alliance for the Wild Rockies v. Cottrell, F.d (th Cir. )... Amoco Prod. Co. v. Village of Gambell, 0 U.S. 1 ()... Bennett v. Spear, U.S. ()..., Ctr. for Biological Diversity v. Rumsfield, F. Supp. d (D. Az. 0)... Defenders of Wildlife v. Martin, F. Supp. d (E.D. Wash. 0)..., Esch v. Yeutter, F.d (D.C. Cir. )... Island v. U.S. Army Corps of Engineers, 0 WL (W.D. Wash. 0)... Marbled Murrelet v. Babbitt, F.d (th Cir. )... Monsanto v. Geertson Seed Farms, 0 S. Ct. ()... National Wildlife Fed. v. Federal Emergency Management Agency, F. Supp. d 1 (W.D. Wash. 0)... passim Noble Manor Co. v. Pierce Co., Wn.d ()... Northern Plains Resource Counc. v. Fidelity Exp., F.d (th Cir. 0)... NRDC v. Winter, S. Ct. (0)... National Wildlife Federation v. National Marine Fisheries Service, F. Supp. 1 (D. Or. 0)..., 1 INJUNCTION (Case No. :-cv-0-rsm) -iii- 0 Second Ave., Suite () -0

5 1 1 National Wildlife Federation v. National Marine Fisheries Service, F.d (th Cir. 0)..., National Wildlife Federation v. National Marine Fisheries Service, F.d ( th Cir. 0)...,, Oregon Nat l Desert Assoc. v. Kimbell, F. Supp. d (D. Or. 0)... Oregon Nat l Desert Assoc. v. Tidwell, 1 F. Supp. d (D. Or. )... Pacific Coast Fed. of Fishermen s Assoc. v. NMFS, F.d (th Cir. 01)... Rosemere Neighborhood Assoc. v. Clark County, WL 0 (Wash. Pol. Ctrl. Hearings Bd., Aug., )... Salazar v. Buono, 0 S. Ct. 0 ()...1 Sayles v. Maugham, F.d 1 (th Cir. )... Sierra Club v. Marsh, 1 F.d (th Cir. )...,,, Swinomish Indian Tribal Community v. Skagit County Dike District No., F. Supp. d (W.D. Wash. 0)... Tennessee Valley Auth. v. Hill, U.S. ()...,, Tribal Village of Akutan v. Hodel, F.d (th Cir. )...,, 1, Village of False Pass v. Watt, F. Supp. d (D. Alas. )...,, 1 Washington Toxics Coalition v. Interior, F. Supp. d (W.D. Wash. 0)... Washington Toxics Coalition v. EPA, F.d (th Cir. 0)..., Weinberger v. Romero-Barcelo, U.S. 0 ()... INJUNCTION (Case No. :-cv-0-rsm) -iv- 0 Second Ave., Suite () -0

6 1 1 West Main Assoc. v. City of Bellevue, Wn.d ()... Western Watersheds Project v. Kraayenbrink, F.d (th Cir. )... STATUTES RCW RCW U.S.C U.S.C U.S.C. (a)()..., 1 U.S.C. (b)()..., 1 U.S.C. (e)... 1 U.S.C. (a)(1)(b)... 1 U.S.C. (a)... 1 U.S.C. 0(g)... REGULATIONS C.F.R. 0.(a)()... C.F.R C.F.R C.F.R ,,,, 0 C.F.R. 0.1(a), (b)... 0 C.F.R. 0.1(g)... 0 C.F.R. 0.1(h)...,, Other Authorities Fed Reg. 0, 0 (Nov., )... Fed. Reg., (July, 00)..., INJUNCTION (Case No. :-cv-0-rsm) -v- 0 Second Ave., Suite () -0

7 Fed. Reg. (Feb. )... S. Rep. No. 0, d Cong., 1st Sess. () INJUNCTION (Case No. :-cv-0-rsm) -vi- 0 Second Ave., Suite () -0

8 1 1 INTRODUCTION Plaintiff National Wildlife Federation ( NWF ) moves the Court for a preliminary injunction partially limiting implementation of the National Flood Insurance Program ( NFIP ) by defendant, the Federal Emergency Management Agency ( FEMA ), in Puget Sound. Over seven years ago, this Court recognized the harm to chinook salmon that FEMA s implementation of the NFIP causes. National Wildlife Fed. v. Federal Emergency Management Agency, F. Supp. d 1 (W.D. Wash. 0) ( NWF v. FEMA ). The Court ordered FEMA to comply with the Endangered Species Act ( ESA ) by engaging in consultation with the National Marine Fisheries Service ( NMFS ) to address the impacts of the NFIP, as required by ESA. After an extensive, multi-year evaluation, NMFS concluded in 0 that implementation of the NFIP jeopardized the survival and recovery of chinook salmon, and other ESA-listed species, in Puget Sound. In accordance with the ESA, NMFS described a comprehensive reasonable and prudent alternative ( RPA ) that would allow FEMA to continue to implement the NFIP without jeopardy to these species. The RPA called for change in each major element of the NFIP in order to reduce development-related harm in sensitive floodplain habitats. Three years after NMFS issued its biological opinion, FEMA has failed to implement the RPA or make other changes to the NFIP that avoid jeopardy. Instead, it continues to implement its program largely unchanged. The Court should grant NWF a preliminary injunction because NWF is likely to succeed on the merits of its claim that FEMA is in violation of the ESA, and because continued implementation of the NFIP is likely to cause irreparable harm to the species in the absence of an injunction. As described further in this memorandum and accompanying proposed order, the Court should preliminarily enjoin FEMA from issuing additional floodplain insurance for new development within key habitat areas in Puget Sound, and from processing certain floodplain map changes, until the Court resolves this case on the merits. INJUNCTION (Case No. :-cv-0-rsm) -1-0 Second Ave., Suite () -0

9 1 1 BACKGROUND I. NMFS HAS CONCLUDED THAT IMPLEMENTATION OF THE NFIP JEOPARDIZES SALMON AND ORCAS. FEMA initiated the ESA (a)() consultation process shortly after this Court found that the agency s failure to do so violated the ESA. 1 After four years of scientific review and interagency negotiations, on September, 0, NMFS issued a -page biological opinion on the impacts of the NFIP on ESA-listed species in the Puget Sound region. Declaration of Jan Hasselman, Ex. 1 (the FEMA BiOp or BiOp ). In addition to chinook salmon, the FEMA BiOp addressed Hood Canal summer chum, Puget Sound steelhead, and Southern Resident killer whales. The FEMA BiOp determined that the implementation of the NFIP jeopardized the survival of each of these species and adversely modified their critical habitat, a result prohibited by of the ESA. FEMA BiOp at 1. NMFS s analysis focused on the primary components of the NFIP: mapping, minimum eligibility criteria, the community rating system, and levee maintenance standards, but often emphasized how these elements worked in tandem. See, e.g., id. at. A. Mapping The identification of flood-prone areas through the mapping process lies at the heart of the NFIP. Areas within the 0-year flood zone (i.e. areas that have a 1% chance of flooding in any year, also known as the special flood hazard area or SFHA ) are subject both to the obligation to purchase flood insurance and to FEMA s minimum eligibility criteria. Id. at -. The primary concern NMFS identified with FEMA s mapping and map revision process is that FEMA s rules effectively encourage the structural modification of floodplains by allowing removal of areas from the SFHA. Id. at -. Once removed from the flood zone, parcels are no longer subject to the insurance requirement and other NFIP standards. Id. at. The FEMA BiOp identified almost 10 instances of fill being placed in floodplains in Puget Sound, and provided several specific examples, 1 In NWF v. FEMA, the Court extensively discussed the operation of the NFIP and its relationship to activities that degrade salmon habitat in Puget Sound. F. Supp. at -. NWF will not repeat that background here. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

10 1 1 in some cases involving hundreds of acres of sensitive salmon habitat. These areas were removed from the floodplain through map changes. Id. at. NFMS also expressed concern that FEMA can take land out of the SFHA based on flood control structures like levees. Id. at. As long as a levee meets FEMA s standards for design, operation and maintenance (which generally require it to protect against the 0-year flood), FEMA will map out the area protected by the levee from the flood zone, eliminating FEMA regulation and the obligation to purchase insurance. While levees offer flood protection, they also impose a range of environmental harms to aquatic habitat and hence FEMA mapping policies encourage behavior that harms salmon and other species. NMFS also emphasized how out of date most Puget Sound maps are and observed that map modernization efforts generally result in identification of a more expansive floodplain area. Id. at. As a result of FEMA s mapping practices, there is an inherent incentive for property owners to place sufficient fill to elevate their buildings above the [base flood elevation]. By allowing individuals to remove their property from regulation by artificially filling it, FEMA is in effect encouraging filling.... Id. at ; id. at ( The usual purpose of placing fill is to enable construction and property development ). Once property is removed from the floodplain, it become[s] available for land use development and construction that might have otherwise been prohibited or constrained by community floodplain regulations, which in turn adversely affects habitat and habitat forming processes. Id. at. Moreover, FEMA s re-categorization of properties out of the flood zone creates a false sense of security that results in more floodplain development. Id. The FEMA BiOp also concludes that FEMA s mapping creates an incentive to build, expand, and replace levees and other flood control structures. Id. at. All of these actions damage salmon habitat, by decreasing important off-channel habitat, impairing natural floodplain processes, reducing flood water storage, and increasing downstream water velocities and erosion. Id. at. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

11 1 1 B. Levee Maintenance Criteria A related issue identified in the FEMA BiOp is a set of requirements and incentives that result in the removal of vegetation from levees. BiOp at -1. Removal of trees and other large vegetation has a variety of adverse impacts to salmon, including loss of shade that keeps streams cool, loss of nutrients, and reduced woody debris necessary to maintain complex habitat features. Id. at -. The BiOp documents a close relationship between FEMA and the U.S. Army Corps of Engineers ( Corps ), which oversees levee maintenance as part of its own regulatory and funding programs. Id. at -1. Under the Corps criteria, any vegetation over a certain diameter on levees must be removed, or eligibility for federal repair funding from the Corps is lost. Id. (documenting combined fiscal incentives to remove vegetation and harming rivers). FEMA does not have its own levee vegetation standards and hence uses the Corps criteria, i.e., a deficiency in meeting the Corps maintenance standards is treated as a deficiency for FEMA s purposes. Id. at 1. Thus, where a levee sponsor elects to leave vegetation in place on its levees, it would not only become ineligible for Corps funding to repair that structure, but FEMA would decline to recognize that levee and would consider land behind it as remaining in the floodplain. The FEMA BiOp documented just such a situation where the City of Bothell removed 00 trees in the riparian zone of a salmon-bearing stream to avoid FEMA re-designating land behind its levee as subject to flooding. Id. at. The BiOp concludes that FEMA s practices create incentives to remove vegetation from levees. Id. at. If FEMA did not rely on the Corps vegetation removal standard, the BiOp states that it is likely that at least some levee sponsors would opt to retain riparian vegetation to protect fish habitat. Id. at. C. Minimum Eligibility Criteria The most significant aspect of the NFIP is the minimum criteria that communities need to meet in order to participate in the NFIP. Id. at 1-1. The FEMA BiOp notes the strong incentive to participate in the NFIP to ensure the availability of flood insurance and disaster assistance. Failure to comply with the minimum criteria can result in suspension from the program, INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

12 1 1 which means existing insurance policies cannot be renewed or new policies sold. Id. at. The existing criteria do not prevent substantial development in the floodplain, and in fact often require additional fill to bring construction above the base flood elevation. Id. at. The NFIP minimum criteria, like the mapping process described above, leads to land use change and construction in the floodplain, as guided by the criteria. Id. at. Additional fill and development in the floodplain, as allowed and even encouraged by the minimum criteria, displaces habitat, increases pollution, and has other adverse effects on salmon. Id. at. Between 00 and December of, FEMA s data reveals that is has insured over,00 new development projects in Puget Sound communities subject to the minimum eligibility criteria. Hasselman Decl., Ex.. Around 00 of those projects were constructed between the time that the FEMA BiOp was issued in September 0, and December. Id., Hasselman Decl., Ex.. D. Community Rating System The last element of the NFIP discussed in the FEMA BiOp is the community rating system ( CRS ). The CRS is a voluntary program under which FEMA rewards communities with lower flood insurance premiums for adopting land-use controls that are more protective than FEMA s minimum criteria. Id. at. While some CRS elements help protect salmon habitat, other elements incentivize harmful behavior like structural modification of floodplains, removal of wood from rivers, and elimination of levee vegetation. Id. at, -1. NMFS also noted a failure to reward beneficial floodplain management activities that don t meet the CRS criteria, for example, innovative programs that help restore normative flows. Id. at 0. According to the BiOp, the combined effect of these components of the NFIP, which collectively encourage development in the floodplain, is stream channelization, habitat instability, vegetation removal, and point and nonpoint source pollution, all of which contribute to degraded The BiOp observed that in 0 FEMA adopted a voluntary approach to encourage use of more fishfriendly minimum criteria. FEMA BiOp at. To date, not a single jurisdiction in Puget Sound has adopted those voluntary standards. Id. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

13 1 1 salmon habitat. Id. at 1. NMFS analyzed each of these impacts in considerable detail, at both the Puget Sound scale and at the individual species population scale. Id. at 1-. The FEMA BiOp concludes that the NFIP jeopardizes the survival and recovery of chinook, chum, steelhead and killer whales, as well as adversely modifying designated critical habitat. Id. at 1. II. TO AVOID JEOPARDY, NMFS RECOMMENDED SIGNIFICANT CHANGES TO EVERY MAJOR ELEMENT OF THE NFIP. As directed by the ESA, the FEMA BiOp articulates a comprehensive RPA that would avoid jeopardy to listed species and adverse modification of critical habitat. 1 U.S.C. (b)(); 0 C.F.R. 0.1(h), 0.0; FEMA BiOp at 0-. The RPA calls for changes in multiple aspects of the NFIP that must be implemented together. Implementation of these changes is most urgent where the NFIP affects Tier 1 salmon populations, e.g., those populations that are so crucial to the species as a whole that the loss of one of them would reduce the species chance of survival. FEMA BiOp at. Categorization of a population as Tier One means that steps must be taken more immediately to reduce its risk of extirpation. Id.; see also id. at ( These salmon populations are already at high risk of extirpation, with critically low population numbers. ) A brief description of the RPA s various elements follows. RPA #1 (Notification): RPA #1 directs FEMA to notify all 1 NFIP communities in Puget Sound within 0 days that development consistent with the NFIP jeopardizes the listed species and adversely modifies their critical habitat. Id. at 1. It directs FEMA to recommend communities implement a temporary moratorium on floodplain development and explains that adoption of the revised development criteria in RPA # would exempt them from potential ESA liability. RPA # (Mapping): The RPA directs FEMA to make multiple changes to its mapping program within six months, with annual reporting thereafter. Id. at -. Most significantly, the RPA directs that letters of map change be processed only when the proponent has demonstrated Although the jeopardy and adverse modification standards are legally distinct, for the sake of brevity this memo will hereinafter generally refer to jeopardy to encompass both. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

14 1 1 that the alteration avoids habitat functional changes, or that the proponent has mitigated for such changes. FEMA must ensure that mitigation occurs for indirect effects that could occur later in time. Id. Additional RPA components include: prioritizing mapping activities based on the presence of salmon; ensuring more accurate mapping through on-the-ground data, and greater consideration of future conditions, e.g., future development, climate change, and other conditions that affect future flood risk. RPA # (Minimum Criteria): RPA # calls for multiple changes to FEMA s minimum development criteria. Id. at. Under this RPA element, NMFS describes a two tier structure under which a core protected area alongside rivers is protected from any adverse effects, and development in the remainder of the floodplain must comply with a number of detailed standards intended to minimize habitat degradation. Id. at - & -. FEMA was directed to ensure that all participating NFIP communities implement these standards on a phased three-year schedule with Tier 1 jurisdictions complying first. Most of the RPA # criteria were drawn from FEMA s own voluntary guidance designed to safeguard aquatic habitat conditions for fish. Id. at 1. Prior to full implementation of these changes, NMFS directed FEMA to keep track of new floodplain development permits so that their effects could be mitigated. Id. at. RPA # (Community Rating System): This RPA directs FEMA in considerable detail to change the CRS to increase points for salmon-friendly measures and decrease points for measures that reduce flood risk but harm habitat (i.e., structural features like levees). Id. at -. RPA # (Levee vegetation and construction): To avoid habitat-related harm associated with levees, RPA # calls for four specific changes within one year. Id. at 10-. A) FEMA is prohibited from recognizing levees that are certified by the Corps unless FEMA demonstrates that it will not adversely affect species; B) FEMA is required to revise its procedures so that levee owners that opt out of the Corps funding program and maintain vegetation remain eligible for emergency The FEMA BiOp documents how climate change has the potential to profoundly alter aquatic habitat and make recovery targets more difficult to achieve. BiOp at 1. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

15 1 1 funding; C) FEMA is required to use, and encourage grantees to use, specific funding sources for projects that benefit salmon; D) FEMA is required to only recognize new levees and floodwalls if they include various habitat-protecting features. RPA # (Mitigation): For any development activity in floodplains that occurs prior to full implementation of RPA elements,, and, FEMA is directed to ensure that appropriate mitigation occurs. Id. at 1. An example offered in the RPA is the contribution of financial, technical, or physical support to floodplain restoration projects. RPA # (Reporting/Monitoring): Finally, FEMA is directed to undertake regular monitoring and reporting of progress towards each of the other RPA elements. The purpose of this reporting is to determine whether additional actions are needed to avoid jeopardy, which is particularly important in assessing on-the-ground NFIP effects that are occurring, such as continued development in the floodplain, through either issuance of [map changes] or floodplain development permits. Id. at 1. A key focus of this reporting is to determine whether additional or alternate actions are needed and to ensure mitigation for development that occurs while other RPA elements are being implemented. Id. at 1; see also id. at (additional measures to ensure mitigation occurs for interim development). The FEMA BiOp includes an incidental take statement that insulates both FEMA and NFIP communities from liability for harm to listed species, provided they comply with the RPA and provided that the rate of floodplain development does not exceed historic rates. Id. at 1. Take is only exempt from ESA liability once communities have adopted the more protective floodplain management criteria contained in RPA #, and only after full mitigation has occurred for any development approved after NMFS issued the FEMA BiOp. Id. at. On April, 0, a senior FEMA official sent a letter to NMFS outlining how the agency intended to respond to the FEMA BiOp. Hasselman Decl., Ex. ( Buckley Letter ). Where the RPA articulated detailed standards and explicit accountability, the Buckley Letter laid out an INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

16 1 1 alternative path that ignored key elements of the RPA and shifted the burden of compliance to NFIP communities. The letter triggered a public reaction of surprise from NMFS officials who believed that FEMA had agreed to the elements of the RPA. A follow-up letter in June sought to provide greater elaboration and amplification of FEMA s response. Hasselman Decl., Ex. ( Carey Letter ). FEMA s position on implementation of the RPA, and the results of its efforts, are further described in its two Annual Reports to NOAA. Hasselman Decl., Ex. ( 0 Annual Report ) and Ex. ( Annual Report ). As of the date of this motion, all deadlines contained in the FEMA BiOp have passed. STANDARD OF REVIEW Under the conventional test governing preliminary injunctions, plaintiffs must show that: a) they are likely to succeed on the merits; b) they are likely to suffer irreparable harm in the absence of relief; c) the balance of equities tips in their favor; and d) an injunction is in the public interest. NRDC v. Winter, S. Ct., (0). In ESA cases, however, the conventional test does not apply. Tennessee Valley Auth. v. Hill, U.S., - (); Sierra Club v. Marsh, 1 F.d, (th Cir. ). In enacting the ESA, Congress foreclosed the exercise of the usual discretion possessed by a court of equity. Weinberger v. Romero-Barcelo, U.S. 0, (). Under the ESA, once a plaintiff establishes a probability of success on the merits and likely harm, the balance of hardships and the public interest require an injunction. National Wildlife Fed. v. National Marine Fisheries Service, F.d, - (th Cir. 0). This case arises under the citizen-suit provision of the ESA. 1 U.S.C. 0(g). Courts See Craig Welch, Feds: New Floodplain Rules to Go Unenforced, Seattle Times (April, 0) (available at The Winter majority affirmed that irreparable harm had to be likely as opposed to just possible. Id. at. However, Winter did not overrule a long-standing sliding scale approach to preliminary injunctions under which the elements of the preliminary injunction are balanced, so that a stronger showing of one element may offset a weaker showing of another. Alliance for the Wild Rockies v. Cottrell, F.d, 1 (th Cir. ) (holding that injunction could issue post-winter where balance of harms tips sharply in plaintiff s favor and there were serious questions as to the merits). INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

17 1 1 have found that since the ESA does not contain an express standard of review, the appropriate standard of review is whether the agency s actions are arbitrary and capricious, an abuse of discretion, or contrary to law. See Tribal Village of Akutan v. Hodel, F.d, (th Cir. ). However, ESA citizen suits do not involve review of final agency action under the Administrative Procedures Act ( APA ). Washington Toxics Coalition v. EPA, F.d (th Cir. 0); Oregon Nat l Desert Assoc. v. Kimbell, F. Supp. d (D. Or. 0) (ESA citizen suit claims do not challenge specific administrative decisions. Instead, they advance an enforcement action and require proof of harm and causation. ). Accordingly, judicial review of ESA citizen-suit claims is not limited to the administrative record. See Western Watersheds Project v. Kraayenbrink, F.d (th Cir. ) ( we may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs ESA claim ); Oregon Nat l Desert Assoc. v. Tidwell, 1 F. Supp. d (D. Or. ); Defenders of Wildlife v. Martin, F. Supp. d, (E.D. Wash. 0). Additionally, there is no limitation to the record when considering the likelihood of irreparable harm. See, e.g., NWF v. NMFS, F.at ; Esch v. Yeutter, F.d, 1 (D.C. Cir. ). ARGUMENT I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIM THAT FEMA IS VIOLATING AND OF THE ESA. A. The ESA Strictly Prohibits Actions That Cause Jeopardy to Listed Species or That Result in Unlawful Take. The U.S. Supreme Court has declared the ESA to be the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. TVA v. Hill, U.S. at, 0 ( Congress intended endangered species to be afforded the highest of priorities. ) The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost. Id. at. To accomplish this purpose, the ESA includes both substantive and procedural requirements that take priority over the primary missions of federal INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

18 1 1 agencies. Id. at. Section of the ESA imposes a strict substantive duty on federal agencies to ensure that their actions do not cause jeopardy to endangered or threatened species. 1 U.S.C. (a)(). Jeopardy is defined as any action that reduce[s] appreciably the likelihood of both the survival and recovery of a listed species in the wild. 0 C.F.R. 0.0; see also id. (adverse modification defined as direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of a listed species. ); National Wildlife Fed. v. National Marine Fisheries Service, F.d, 1- ( th Cir. 0) (discussing importance of recovery in standard). Section also establishes an interagency consultation process to assist agencies in complying with this substantive duty. 0 C.F.R. 0.1(a), (b). During the consultation process, the expert wildlife agency (NMFS for anadromous and marine species) must formulate a biological opinion as to whether the action under review will cause jeopardy. 0 C.F.R. 0.1(g). If the agency s opinion is that jeopardy will occur, it must formulate, if possible, a reasonable and prudent alternative ( RPA ) to the proposed action that will avoid jeopardy. Id. 0.1(g), (h). An RPA must be consistent with the intended purpose of the proposed action and within the action agency s authority, that is economically and technologically feasible. Id If the agency cannot identify an RPA or if the action agency is unwilling to implement it, the proposed action is prohibited without authorization from a cabinet-level committee. 1 U.S.C. (e). A separate provision, of the ESA, strictly prohibits activities that take endangered species. 1 U.S.C. (a)(1)(b). While imposes a duty on federal agencies, applies to any person. Id. The take prohibition is typically extended to threatened species by regulation. Id. (d). The ESA defines take as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Id. (). Congress intended The ESA defines two categories of imperiled species. Endangered species are those that are in danger of extinction in all or a significant portion of their range. 1 U.S.C.. Threatened species are those that are likely to become an endangered species in the foreseeable future. Id. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

19 1 1 the term take to be defined in the broadest possible manner to include every conceivable way in which a person could harm or kill fish or wildlife. S. Rep. No. 0, d Cong., 1st Sess. (). NMFS has defined harm to include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering. 0 C.F.R... When a federal agency consults pursuant to (a)(), and the biological opinion either finds no jeopardy or finds jeopardy but identifies an RPA, the opinion also will include a statement concerning incidental take. This statement provides a limited exemption from liability if take occurs in the course of implementing the no-jeopardy action or RPA. Id. 0.1(i). The failure to comply with the conditions in a BiOp negates this exemption. See infra at -. B. To Comply With, Federal Agencies Must Either Implement RPAs as Written or Bear the Burden of Proving That Their Actions Avoid Jeopardy. Although the RPA in a jeopardy BiOp outlines a path that will avoid jeopardy, departure from the terms of an RPA is not, in itself, a violation of the ESA. See Tribal Village of Akutan, F.d at. As the Ninth Circuit has explained, an agency can depart from an RPA, and still meet its (a)() obligation, if it takes alternative, reasonably adequate steps to insure the continued existence of any endangered or threatened species. Id. (emphasis added); see also Village of False Pass, F. Supp. at ( the decision whether or not to proceed with the project rests ultimately with the Secretary. He must insure that agency actions are not likely to jeopardize the continued existence of the species ). As a practical matter, however, the RPA in a jeopardy biological opinion has a virtually determinative effect on agencies, because the burden of showing that another course of action will avoid jeopardy is so high. As the U.S. Supreme Court has observed: [T]he action agency must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency s expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong. The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

20 1 1 Bennett v. Spear, U.S., 1-0 () (emphasis added); 1 U.S.C. (a)() (requiring use of best scientific and commercial data available in complying with ); see also Village of False Pass, F. Supp. at 0 ( The biological opinion is accorded substantial weight as evidence of the Secretary s compliance with the [ESA] ). Accordingly, where an agency departs from an RPA, it bears a heavy burden of justifying its actions in light of the ESA s strict prohibitions. Bennett, U.S. at 1-0 ( A federal agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of articulating in its administrative record its reasons for disagreeing with the conclusions of a biological opinion ), citing 1 Fed. Reg.,,, (June, ); Sierra Club v. Marsh, 1 F.d, (th Cir. ) ( Placing the burden on the acting agency to prove the action is non-jeopardizing is consistent with the purpose of the ESA and what we have termed its institutionalized caution mandate. ); Defenders of Wildlife, F. Supp. d at. Courts have applied this precautionary mandate strictly. In Village of False Pass v. Watt, F. Supp. d (D. Alas. ), for example, the district court found that the Secretary violated the ESA by failing to fully comply with an RPA element involving noise pollution from seismic activities associated with oil exploration. While the RPA called for preliminary seismic activities to only be conducted in a manner that didn t disturb whales, the Secretary ordered lessees simply to provide advance notice of such activities. The Court ruled that such an approach fell short of insuring against jeopardy, as it insures only that the problem will be given attention at a later date. Id. at -. In the absence of an adequate justification for this departure from the RPA, the Court ruled the secretary in violation of (a)(). Id. at ; see also Sierra Club v. Marsh, 1 F.d at (holding agency violated ESA where it failed to implement mitigation actions required to avoid jeopardy). The Ninth Circuit found this element of the District Court s decision, appealed by the government, moot because it had since been rectified. With respect to other RPA elements, the district court upheld the agency s departures from the RPA, and the Ninth Circuit affirmed. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

21 1 1 In contrast, courts have upheld agency decisions to depart from RPAs only in narrow circumstances. In Tribal Village of Akutan, F.d at -, the Ninth Circuit addressed an agency s decision to not implement some RPA measures in a BiOp for a multi-stage oil leasing sale. The court first noted that since the RPA was phrased in general, rather than specific terms, it was not at all clear that the RPA had not been fully implemented. Id. at 1. Second, the Court emphasized the step-wise nature of oil-leasing decisions and the fact that the specific decisions under review would not themselves have significant impacts, since the more harmful actions along with additional environmental review would occur later in the process. Id. ( We once again note that the risks to endangered species during the lease sale stage are virtually nonexistent. Only limited preliminary activities are permitted during this stage. ). Finally, the Court found that while the Secretary may have decided not to adopt some RPA elements, he had adopted other mitigating measures that appeared to have satisfied NMFS. Id. In light of all these factors, the Ninth Circuit found that the agency had complied with its duty to insure against jeopardy. Id. at ; see also Village of False Pass, F.d at - (upholding agency s compliance where RPA provisions were general and where on-the-ground protections could be deferred until later stages). C. By Not Implementing the RPA or Any Alternative that It Has Demonstrated Will Avoid Jeopardy, FEMA is Violating of the ESA. In light of the NFIP s pervasive contribution to the decline of salmon and orcas in Puget Sound, NMFS outlined a comprehensive RPA with multiple, specific elements that, when implemented together, would avoid jeopardy. FEMA has not made those changes to the NFIP, nor has it implemented any alternative actions that eliminate jeopardy. Instead, seven years after this Court found FEMA in violation of the ESA, and three years after NMFS found the NFIP was causing jeopardy, FEMA continues to implement the NFIP mostly unchanged. Its continued implementation of the NFIP in the face of the FEMA BiOp violates of the ESA. This Court has already found NWF has standing to sue FEMA regarding ESA compliance for the NFIP. NWF v. FEMA, F. Supp. d at ; Salazar v. Buono, 0 S. Ct. 0, 1 () (holding that government cannot challenge standing in second lawsuit where it had not appealed finding of standing in INJUNCTION (Case No. :-cv-0-rsm) -1-0 Second Ave., Suite () -0

22 FEMA Has Not Implemented RPA #. RPA # seeks to alter regulations and practices that authorize changes to floodplain maps based on fill, levee construction, and other landscape modifications. Supra, at -; C.F.R..1-.; see also NWF v. FEMA, F. Supp. d at ( By allowing individuals to remove their property from regulation by artificially filling it, FEMA is in effect encouraging filling ). NMFS found that such changes were within FEMA s authority. BiOp at. Indeed, much of the language in RPA # was proposed by FEMA itself. Hasselman Decl., Ex. at -. FEMA, however, has not changed its approach to map amendments to remove these incentives. Instead, it has stated that it will simply continue its practice of requiring applicants to obtain the applicable ESA permits before issuing most letters of map change. Buckley Letter at. But if FEMA s existing practice had been adequate, the FEMA BiOp would not have found jeopardy and recommended changes. Moreover, FEMA s proposal to require map change proponents to obtain applicable ESA permits is misleading. Unless there is a federal permit or funding involved, there is no ESA permit to obtain. 1 U.S.C.. While parties may choose to enter into a habitat conservation plan with NMFS to ensure they are not subject to potential liability, 1 U.S.C. (a), this is a voluntary process, not a regulatory one. Moreover, individual fills often degrade habitat and can contribute to jeopardy without violating the take prohibition. Declaration of Alan Wald,. Fill, like many other floodplain development activities, is a cumulative problem that may look relatively benign for one individual project but, across a watershed and over time, it pushes a species towards extinction, i.e., causes earlier case). Additional materials in support of NWF s standing will be filed at an appropriate stage of this litigation in any event. NWF is offering the expert testimony of hydrogeologist and floodplain manager Alan Wald in support of this motion. NWF had also planned to support this motion with fact testimony from DeeAnn Kirkpatrick, a former NMFS biologist who led the team that developed the FEMA BiOp. Ms. Kirkpatrick s former employer has sought to prohibit her from providing testimony in this case, and the parties have not yet been able to resolve the issue. Unless the dispute can be resolved between the parties, NWF intends to seek an appropriate order from this Court allowing Ms. Kirkpatrick s testimony. NWF has already provided FEMA and its counsel with a draft of the testimony, so no prejudice will arise to FEMA if her declaration in support of this motion is filed subsequent to date of this motion. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

23 1 1 jeopardy. Id. Focusing only on individual actions that, standing alone, could cause take misses the cumulative degradation of habitat and the point of RPA #. Id. FEMA seeks to sidestep RPA # because it considers map revisions actions with outcomes that it lacks the ability to influence, i.e., actions that have already taken place. Hasselman Decl., Ex. at. As such, any changes to a floodplain resulting in a change in the floodplain mapping will not be evaluated for ESA compliance... Hasselman Decl., Ex. at. But FEMA still completely misses the point. NWF v. FEMA, F. Supp. at ( There is nothing in the NFIA authorizing, let alone requiring, FEMA to authorize filling activities to change the contours of the natural floodplain. Indeed, such regulations may be counterproductive to the enabling statute s purpose of discouraging development in areas threatened by flood hazards. ). Fill and habitat degradation occur because FEMA s regulations provide tangible benefits for altering the floodplain: once altered and mapped out of the floodplain, NFIP insurance and other requirements disappear. FEMA has discretion to modify its mapping practices to remove this incentive to fill in the floodplain, which is what the RPA directed it to do. Yet it has refused, still claiming erroneously that it lacks the ability to influence fills. For conditional letters of map revision ( CLOMRs ), FEMA has indicated it will consult individually with NMFS prior to issuing them. Buckley Letter at. Unlike regular letters of map revision ( LOMRs ), conditional letters are sought prior to the actual placement of fill and, in FEMA s view, allow FEMA to influence the project s outcome. Carey Letter at. However, consultation on individual CLOMRs is not an adequate substitute for changes to the mapping regulations and practices at a programmatic level because the effects of a single project, standing alone, are often difficult to ascertain and unlikely to trigger full ESA protections. Wald Decl.,. FEMA s actions in this regard were adopted as a national policy on August,, applicable to letter or map change submittals received after October 1,. Ex.. FEMA staff recently appeared to reverse course, stating that FEMA is not obligated to proceed with a Section consultation on any requested CLOMR, and would consider factors such as the availability of resources in making its decision as to whether to consult. Ex. at. INJUNCTION (Case No. :-cv-0-rsm) -1-0 Second Ave., Suite () -0

24 1 1 And if consultation on conditional letters proves to be a barrier, parties can simply proceed with their project and obtain a map revision after the fact, thereby avoiding any ESA review. FEMA also appears to have largely sidestepped RPA directives intended to require additional actions that increase the accuracy of flood maps in salmon habitat. BiOp at. For example, the BiOp called on FEMA to revise map modeling methods to consider future conditions and the cumulative effects from future land use-change, including climate change. BiOp at -. Even though FEMA itself drafted this RPA provision, Ex. at -, it now claims it lacks authority to address these factors and has proposed a purely voluntary approach that allows communities to develop better maps for their own floodplain management goals. Carey Letter at ( FEMA cannot produce [FIRMs] based on future conditions ); Hasselman Decl., Ex. (voluntary mapping guidance). Similarly, the BiOp calls for FEMA to ensure that floodplain modeling incorporates on-the-ground data to increase the accuracy of maps, and to prioritize mapping activities based on Tier 1 salmon populations. BiOp at. But FEMA has only pledged to work with communities to prioritize flood maps, and proposed voluntary measures that can be adopted, or ignored, by communities. Buckley Letter at ; Ex.. While FEMA claims to have changed the algorithm by which it establishes flood mapping priorities, the results are not evident: only one Puget Sound jurisdiction has been prioritized for updated maps. Wald Decl., 1. FEMA s approach may allow communities to develop their own more accurate maps for informational purposes, but this does nothing to change the flood insurance requirement and other regulatory consequences of FEMA s maps, and little to ensure more accurate maps that help avoid jeopardy. Considering such future conditions is crucial, as studies predict a significant expansion of floodplain size over the next century due to climate change. BiOp at 1- (science predicts a large negative impact of climate change on freshwater salmon habitat ); Wald Decl.,. A draft national study conducted by FEMA confirmed this prediction but has never been finalized. See id.; Evan Lehman, Flood Prone Land Likely to Increase by % - A Major Challenge to Federal Flood Insurance Program, N.Y. Times, July, ( Despite this, FEMA s voluntary mapping guidance includes no specific consideration of changes in peak flow due to climate change. Ex. at. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

25 1 1. FEMA Has Not Implemented RPA #. RPA #, which calls for changes to FEMA s eligibility criteria, is arguably the most important of the RPA elements. NWF v. FEMA, F. Supp. at, 1 (describing relationship between eligibility criteria and harm to salmon). The RPA outlines an integrated and highly specific set of changes to the NFIP eligibility criteria aimed at eliminating the adverse impacts of new development in floodplains. It articulates a two-tiered structure under which the greatest level of protection would be given to a protected area comprised of (a) the floodway, (b) the channel migration zone ( CMZ ) plus 0 feet, and (c) a riparian buffer zone ( RBZ ). 1 NMFS conceived of the protected area primarily as a no disturbance zone, except for a narrow list of permissible activities that includes repair of existing structures, maintenance of utilities, and restoration projects. BiOp at -. In the rest of the floodplain outside the protected area, the RPA establishes somewhat more flexible protections under which new development is permissible as long as the loss of floodplain storage is avoided, rectified, or compensated for, and any indirect adverse impacts to habitat values are mitigated such that equivalent or better salmon habitat protection would be provided. RPA #, which includes a five-page appendix, provides extensive direction on how to implement these standards, including a number of specific directives pertaining to density levels, vegetation removal and impervious area, roads, levees, stormwater, redevelopment, and other issues. Id. at -, -. The RPA directed FEMA to ensure that all NFIP communities implement these floodplain management measures as soon as practicable but in no event later than a phased schedule under which all jurisdictions would be in compliance by the end of three years. During this 1 The floodway is the portion of the stream channel that must be reserved in order to carry the baseflood without increasing the surface elevation by more than a designated height. BiOp at. The size of the RBZ, which is determined through a state Department of Natural Resources 0 stream typing system, is not static but depends on the specifics of the stream. Id. at ; Second Errata Notice at. The RPA, issued in September of 0, required that a third of all NFIP jurisdictions, including all Tier 1 jurisdictions, come into compliance within two years, and another third within two and a half years. Id. at. By letter, NMFS later extended these deadlines so that all jurisdictions were to be in compliance at the end of three years, or Sept.,. Hasselman Decl., Ex.. INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0

26 1 1 implementation phase, NMFS required FEMA to collect data on development activities to ensure that any adverse impacts are known, assessed, and subsequently mitigated. Id. at. After NMFS issued its BiOp, FEMA decided it would not make changes to its eligibility regulations. Carey Letter at -. Instead, it developed an alternative strategy that relies primarily on existing regulations that require communities to show that all necessary permits have been received for individual development projects. C.F.R. 0.(a)(); Carey Letter at. According to FEMA, this requirement can be applied to implement RPA # on a project-by-project basis either through direct compliance with the ESA (i.e., via a consultation or other ESAapproved process), or through an individual habitat assessment that shows no adverse effect or modification will occur with the project or that appropriate mitigation has taken place to have no net effect. Carey Letter at. Additionally, FEMA proposed two related programmatic approaches that individual NFIP communities may voluntarily pursue, one through adoption of a model ordinance, and the second through a checklist (based on the model ordinance) documenting that the community s development criteria are equally as protective as the RPA. Id. These three options have been labeled by FEMA as the three doors to ESA compliance: Door 1 (model ordinance), Door (checklist), and Door (permit-by-permit showing of no net adverse effects). FEMA allows NFIP communities to choose which compliance pathway to pursue. FEMA has developed guidance documents to implement these options, including a Door 1 Model Ordinance (Hasselman Decl., Ex. ), a Door checklist (Hasselman Decl., Ex. 1), and guidance on how to prepare habitat assessments and conduct mitigation for individual projects (Hasselman Decl., Ex., hereinafter, Habitat Assessment Guidance ). To date, FEMA has approved four jurisdictions as having adopted the model ordinance and an additional six jurisdictions via the Door # checklist. Hasselman Decl., Ex. 1; Wald Decl.,. Three dozen more communities have requested approval under Door. All other NFIP communities, including virtually all Tier 1 jurisdictions, are considered by FEMA to have defaulted to Door. For the INJUNCTION (Case No. :-cv-0-rsm) -- 0 Second Ave., Suite () -0